The problem with banning masks Covid-era battles are being fought once again

The legislation was introduced by local lawmaker Mazi Pilip, a former IDF paratrooper who gained a national profile when she ran unsuccessfully for the congressional seat vacated by the disgraced George Santos, and signed into law by county executive Bruce Blakeman. To justify the new law, Pilip raised the alarm about Gaza protesters “hiding behind the mask and terrorising the Jewish community”, while Blakeman argued that the anti-mask bill “protects the public”. Like the mandates it inverts, then, the ban has been presented as a means of keeping the citizenry safe from a real and immediate danger.

Pilip and Blakeman are Republicans, so to a certain extent the ban reinforces the Covid-era partisan split over masking. But it’s not as straightforward as that. Indeed, the first high-profile New York politician to endorse such a measure was Democratic governor Kathy Hochul. In June, after a viral video seemed to show pro-Palestinian demonstrators harassing Jewish passengers in a subway car, Hochul was reported to be considering a ban on face coverings on public transit, and several Democratic state legislators drafted a bill doing just that.

Versions of the same idea had also been floated on both the Left and the Right in response to an upsurge in shoplifting and other crime in the wake of the pandemic. Widespread masking clearly played some role here by enabling thieves to conceal their identities from employees and surveillance cameras. Though he stopped short of calling for a citywide ban, New York City Mayor Eric Adams, another Democrat, suggested to small business owners last year they should ban customers who refused to uncover their faces.

A paradoxical secondary effect of the draconian rules imposed during the pandemic was to create conditions for a severe collapse of public order in urban areas. For one thing, the collective retreat of much of the population from public spaces in effect abandoned large areas of cities to homelessness and delinquency. Meanwhile, universal masking norms — combined with cutbacks in policing —helped create conditions for impunity for petty crime.

But there are deeper roots, too. The Left-wing embrace of masking on public health grounds also coincided with the prominent role of antifa during the 2020 Black Lives Matter protests, another source of major public disturbances that year. “Black-bloc” masking, long practised by antifa militants, gained greater respectability as face-covering became nearly universal in pandemic-era Left-wing protest.

By the time of the October 7 attacks, the continued progressive attachment to Covid precautions and the greater acceptance of black-bloc-style tactics ensured that anti-Israel protests were heavily masked affairs from the outset. The concentration of protest on elite college campuses evidently strengthened protesters’ resolve to conceal their identities, given most were students worried that the public exposure of their activism might derail their promising careers.

The Nassau law, then, is a response to several highly contingent developments of the past few years. But even so, the bans themselves and the issues they raise aren’t new in American or New York politics. Indeed, prior to 2020, a mask ban had been on the state books since 1845. Back then, a law was passed to squelch the “anti-renter” movement of tenant farmers who had revolted violently against the harsh terms dictated by their landlords, donning elaborate Indian costumes when attacking their nemeses. The landlord-allied state government responded by making it illegal for three or more people congregating in public to mask, with an exception made for “masquerade parties”.

Nor did the ban fade entirely into obscurity along with the anti-renter movement. Over the recent decades, New York police used the 1845 law to arrest anti-globalisation protesters, Occupy Wall Street militants, and Pussy Riot supporters, as well as to constrain the activities of the Ku Klux Klan. Indeed, extensive litigation followed a 1999 Manhattan rally by the latter group, in which city officials prohibited them from covering their faces. Anti-masking laws in several other US states were devised specifically to rein in the Klan — a precedent sometimes cited by lawmakers advocating crackdowns on masked Gaza protesters, whom they claim are engaged in a campaign of racist intimidation.

These older mask ordinances have faced legal challenges, as the Nassau law likely will. So far, American jurisprudence has remained divided on their constitutionality, with some courts finding that masking is not a form of expression and thus enjoys no first-amendment protection, and others determining that the anonymisation enabled by face coverings offers a means of protecting the expression of unpopular views. Those arguing against the right of Klan members to mask have made a case critics of Gaza protests have repeated recently: that masks are a tool of intimidation. “[A] faceless figure strikes terror in the human heart,” as a 1990 Georgia Supreme Court decision put it.

Yet we are, of course, living in very different times. And what sets apart the new round of controversy isn’t just the conversion of the mask into a symbol of politicised public health, but the contradictory effects of the new electronic media landscape on how we conceive of our public identities. Perhaps most obviously, online existence has made younger generations of protesters take the constant availability of anonymous or pseudonymous modes of expression for granted. Today, every one of us, when we communicate by way of a digital profile, is at least partly “masked,” which makes our publicly exposed faces feel all the more naked. This is all the more true as facial-recognition technology becomes more ubiquitous and accurate.

Thus a paradox emerges: at the same time as they furnish new means of anonymisation, digital technologies also elevate the risk of exposure. Political protesters in the late 20th century were unlikely to have their participation made public unless a news camera happened to capture them. Conversely, in today’s crowdsourced panopticon, any public activity is a viral video waiting to happen, which might well upend the life of anyone unlucky enough to become the main character of the day. Our technologies incite us to make our views public on a scale rarely possible for prior generations, and at the same time threaten us with dire consequences if the expression of those views provokes a backlash.

As long as these conditions hold, several things will be true. The availability of anonymous means of expression online, as well as the premium accorded by the attention economy to the extreme, will ensure that controversial and often hateful views enjoy a visibility they wouldn’t have otherwise. This, as well as the general decline of public order exacerbated by the collective retreat into digital life, will continue to provoke a general sense of unease and vulnerability, creating constituencies for various sorts of “safetyist” appeals — such as laws targeting disinformation, hate speech or masked protest.

And in the meantime, the conflict over mask bans will remain legally and politically unresolved because it pits two goods against each other: on one hand, freedom from intimidation carried out under the cover of anonymity; on the other, the protection of unpopular views from retaliation. As long as it can be plausibly claimed that both of these values are severely compromised, an end to this decade’s mask wars is unlikely to arrive soon.

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Geoff Shullenberger is managing editor of Compact.

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